HKSAR v. WAN HON SIK

DCCC 1161/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1161 OF 2013

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REASONS FOR SENTENCE

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1. The defendant appeared before me and pleaded guilty to a total of two charges.

2. The first charge is “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The dangerous drugs involved in this case is, namely 6.26 grammes of a crystalline solid containing 5.75 grammes of methamphetamine hydrochloride which is also commonly known as “Ice”.

3. The second charge is “Possession of apparatus fit and intended for the inhalation of a dangerous drug”, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.  The subject matter of the apparatus is one methamphetamine inhaling device consisting of one glass container and one glass tube with two openings, with opening in ball-shaped structure.

The Facts

4. The facts of this case is simple and straightforward.  According to the Summary of Facts which has been agreed by the defendant before he was convicted, he was an occupier of a room in the premises in To Kwa Wan as stated in both charges.  On 17 September 2013, the police launched an anti-narcotic operation and executed a search warrant against the premises.  The police found in the room, firstly a quantity of a purity of 3.48 grammes of methamphetamine hydrochloride contained in 5 transparent re-sealable plastic bags inside a clear plastic box on the cupboard.  Apart from the dangerous drugs, the police also found some trafficking paraphernalia, such as an electronic scale, a plastic spoon and also another clear plastic box containing around 50 transparent re-sealable plastic bags.  A glass bottle with a plastic straw suspected to be an “Ice flask” and containing traces of “Ice” were also found.  The defendant later returned to the premises and opened the front door of the room with a key.  Upon enquiry, the defendant stated that he lived in the Premises with the Tenant and slept there.  The police arrested the defendant for the present two offences and under caution, the defendant said the Ice and Ice Flask had nothing to do with his friend and that they belonged to him.  He used the Ice Flask for inhaling dangerous drugs.

5. Upon a body search, the police found inside the defendant’s right front trousers’ pocket, one transparent re-sealable plastic bag containing another purity of 2.26 grammes of methamphetamine hydrochloride.  The police also seized cash of $2,316.90 and two mobile phones from the defendant.

6. The street value of all the purity of 5.75 grammes of methamphetamine hydrochloride is around HK$3,955.

Sentencing considerations

7. In sentencing, I have taken into account the whole circumstances of the case, including its nature and the facts, in particular the nature and quantity of the dangerous drugs involved, background of the defendant, as well as the mitigation put forward on his behalf.

8. Trafficking in dangerous drugs is, of course, a very serious offence and those who had engaged and indeed convicted in such an offence are expected to be severely punished by the court.

9. The defendant is now aged 40.  He was born and educated in Hong Kong and has reached a Form Two level.  He has worked as a construction site worker and a kitchen assistant before by occupation.  He had 14 court appearances in the past in connection with no less than 28 charges of which 10 were drug-related.  In particular, he has two similar records of the first charge, both in 2003, where he was sentenced to a total of 7 years’ imprisonment and also a similar record of the second charge in 2010 for which he was sentenced to 3 months’ imprisonment.  For all these years since 1992, he has 5 conviction records for “Possession of DD” and also a conviction record for “Keeping a Divan”.  His last conviction was in February 2013 when he was sentenced to the DATC for “Possession of DD” and he has been just discharged from the DATC for 10 days and so he was unemployed at the time of his arrest for this case.  He is still single and is the only son in the family with one younger sister.  His father passed away 13 years ago and his mother is now aged 60.

10. In mitigation, counsel for the defendant had emphasised to the court his frank admission, his plea of guilty and his full cooperation with the police.  He submitted to me for consideration letters of mitigation written by the defendant himself and the ex-employer of the defendant.  The ex-employer has indicated her willingness to still offer him a job after serving his time and the defendant himself has expressed his regret and his determination to turn over a new leaf and asked for leniency.

11. Counsel for the defendant informed the court that the Prosecution has agreed and accepted that out of the 5.75 grammes of “Ice”, only 4.25 grammes were for the purpose of trafficking whereas the remaining 1.5 grammes were for the defendant’s self-consumption.

12. According to the sentencing guideline for “Ice” as provided in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, for a quantity up to 12 grammes, the tariff is 3 to 7 years’ imprisonment.  This is later amended, due to a typographical error, in HKSAR v Capitania [2004] HKCU 926, so that the ‘12 grammes’ in the phrase ‘up to 12 grammes’ would read ‘up to 10 grammes’.

13. Applying the tariff, for 5.75 grammes of “Ice”, the starting point would be about 5 years and 4 months and for 4.25 grammes, the starting point would be about 4 years and 9 months.  The difference is about 7 months.

14. In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal has said at paragraph 19:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

15. The 7 months reduction represents slightly more than 10% discount from the original starting point which I judge, based on the factors as listed above, as appropriate and it is also in line with the tariff based on the agreed and lesser quantity for the purpose of trafficking.

16. Also, the defendant is for all intent and purpose a repeated offender for “Trafficking in DD”.  This is indeed the third time he has been convicted for this offence and obviously even the past sentence of 7 years’ imprisonment in total was not enough to deter him.  According to HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, this court has a clear duty to enhance the sentence in order to protect the public as well as to deter the defendant from re-offending.  Counsel for the defendant had urged me not to increase the sentence as his previous convictions were all in 2003 which is a long time ago.  I take this into account but in the end I still decide that I need to increase the sentence but because of the fact that more than 10 years has elapsed since his last two similar convictions, I decide to only order a modest increase of the sentence by 3 months.

17. Thus, the only effective mitigation is the defendant’s plea of guilty which entitles him to a full one-third discount from his normal sentence.

18. The following is the sentence on each charge.

Charge 1

19. Of the two charges, Charge 1 is the most serious charge.  The starting point for the reduced quantity is now 4 years and 9 months but it has to be increased by a further 3 months to 5 years as the defendant is a repeated offender for this offence.

20. After the one-third discount, the defendant will receive a sentence of 40 months’ imprisonment in Charge 1.

Charge 2

21. For the second offence, the “Possession of the apparatus”, I will simply use 6 months as a starting point and after giving one-third discount, the sentence in relation in this charge is one of 4 months’ imprisonment.

Total sentence

22. Finally, the question of totality of sentence.  Because of totality, I will have to further adjust the sentences by ordering that only 2 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1, therefore making a total of 42 months’ imprisonment or 3 years and 6 months for all the two charges.